Re Minister for Immigration & Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57
Facts
Miah was from Bangladesh and arrived in Australia on 9 March 1996. He applied for a protection visa on the basis that he was a refugee under section 36(4)(a) of the Migration Act 1958 (Cth), i.e. that the ‘non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;’. It was up to the Minister for Immigration and Multicultural Affairs at the time, Mr. Phillip Ruddock, to be satisfied that Miah met the criterion required under section 36(4)(a) in order for Miah to obtain the protection visa.
Miah came from a liberal, secular, Bangladeshi family that was often in dispute with Islamic Fundamentalists. One such testament to their dispute was Miah giving evidence that Islamic Fundamentalists targeted his father due to his unorthodox views and murdered him in Bangladesh’s war of independence. Further, while at university in Bangladesh, Miah engaged in political-satire cultural and literary functions which criticised the Islamic Fundamentalists and those opposed to independence.
In evidence, Miah submitted that many attempts were made on his life whilst living in Bangladesh. On one occasion a hand-made bomb was thrown into his office in Dhaka. He subsequently fled to Thailand for two years. Upon his return, he married a Hindu woman. The couple were sentenced to 101 public lashings each and told that they had seven days to leave the village lest they be killed.
Miah alleged that the Bangladesh National Party had been supporting Islamic Fundamentalists and that his own Government would not protect him if he were to return to Bangladesh. The Minister, in determining whether or not Miah should be granted to protection visa, noted that the Awami League (a pro-independence political party) had recently come into power in Bangladesh. Mr. Ruddock refused Miah’s application for a protection visa on the following grounds:-
1. The recent election minimised the number of Islamic Fundamentalists who held a seat in Parliament.
2. The population, by not electing the Islamic Fundamentalists, were, in the Minister’s view “basically religious moderates who shun the radical brand of Islam… Bangladeshis in general are tolerant”.
3. The Bangladeshi Constitution provides for freedom of religion, a freedom which the Awami League respected. Even so, the Minister noted that “while the government has reportedly failed at times to denounce, investigate or prosecute the Islamic extremist attacks on religious minorities and women, there is no indication that it is totally powerless to stop those violations of other people’s rights. The current government can still be said to be capable of offering persons like the applicant effective protection against the religious fundamentalists“.
The Migration Act 1958 (Cth) allows for a merits review of the decision made by the Minister. After the Mr. Ruddock’s rejection of protection visa application, Miah obtained the services of a firm of solicitors in order to pursue the merits review (de novo review). Some time in early 1997, the solicitors for Miah inadvertently misplaced the completed merits review application form. It was subsequently found on 7 July 1997, however by then Miah was time-barred from lodging the form. He then made two separate applications to the Minister for permission to lodge a fresh protection visa application under section 48B of the Migration Act. Both of his requests were refused by Mr. Ruddock.
Natural Justice
This case was primarily concerned with the provision of natural justice under the ‘Hearing Rule’, i.e. that natural justice should be afforded in all Hearings. Natural justice refers not only to the ‘Hearing Rule’ but also the ‘Rule against Bias’ and requires fairness throughout the judicial process. The rationale for the provision of natural justice under the ‘Hearing Rule’ is two-fold:-
1. It gives the person affected by the administrative division (in the present case, Miah) the right to be heard and therefore generally leads to a better decision.
2. It also has a psychological element. The provision of natural justice leads to a greater acceptance of adverse decisions.
Prior to 1985 natural justice was only available when the administrative decision affected a right, i.e. in a direct way (Kioa v West (1985) 159 CLR 550). However, in Kioa v West (1985), Mason J followed United Kingdom suit holding that the Australian common law has evolved to the extent that there now exists a common law duty to act in accordance with procedural fairness. He went on to say that where an adverse administrative decision is made against an individual, that individual must be given the right to respond to the decision maker and provide an explanation. Brennan J held that natural justice is derived from statutory construction and that where a decision affects someone’s interests and in a way that substantially singles them out, that exercise of administrative power is conditioned upon natural justice. Thus, where the legislature is silent, there is a very strong assumption that the Court will read natural justice into the legislation.
Political Backdrop
The Migration Act 1958 (Cth) is a statutory labyrinth boasting upwards of 500 sections. Inserted into this Act is “Subdivision AB – Code of Procedure for Dealing Fairly, Efficiently and Quickly with Visa Applications”. Enumerated within this subdivisions are sections 51A – 64 (of which 51A was not enshrined until 2002 – discussed later). Of particular importance is section 54(3) which provides as follows:-
‘The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(2) For the purposes of subsection (1), information is in an application if the information is:
(a) set out in the application; or
(b) in a document attached to the application when it is made; or
(c) given under section 55.
(3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.‘
Clearly, subsection (3) operates in direct contradiction with the natural justice ‘Hearing Rule’. The other sections enumerated under the “Code” also appear to displace natural justice in direct contradiction of the High Court’s decision in Kioa v West (1985). The High Court in this instance was therefore required to asses whether or not natural justice had been excluded by the ordinary words of the statute, amongst other relevant factors.
Held:
A majority of the High Court of Australia held in favour of Miah. They held (at [125]) that ‘the delegate (the Minister) breached the rules of natural justice by failing to offer him an opportunity to respond to new material critical to adverse findings against his application.’
With respect to the ‘Code’ they went on to say (at [126]) that ‘It is now settled that when a statute confers on a public official the power to do something which affects a person’s rights, interests or expectations, the rules of natural justice regulate the exercise of that power “unless they are excluded by plain words of necessary intendment”. An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from “indirect references, uncertain inferences or equivocal considerations”.’
The denial of natural justice constitutes a ‘jurisdictional error’ under section 75(v) of the Commonwealth of Australia Constitution 1901. Miah was therefore entitled to discretionary relief and was awarded an order nisi with absolute costs. He was awarded with all constitutional writs of prohibition, mandamus and certiorari.
Post Miah:
After the High Court’s decision in Miah, the executive under the ‘Migration Legislation Amendment (Procedural Fairness) Bill 2002’ (only one year after Miah), enacted section 51A into Subdivision AB of the Migration Act 1958 (Cth). This section effectively is headed “Exhaustive Statement of Natural Justice Hearing Rule” and reads as follows:-
‘(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.’
This is evidentiary of the Howard Government unbinding itself from the High Court precedent established in Miah. The enactment of this section enables the Government to circumvent the High Court’s stringent view on the requirement of natural justice and, in particular, the Hearing rule. In any event, the High Court will not bow down to the rogue Government, instead, the Courts must look for craftier and more inventive avenues of judicial interpretation to invalidate the Government’s self-promoting agendas.
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